744
FEDERA13iREPORTER,
vol. 41. :
therto ddSO; and that, where does demand sU<lh arbitration, no stiitt1nnbe maintained until after'the amount of damllges shall have been in that manner ascertained. 'We say there is ground for this constructioniartd we use this language because nothing more 'is required. If the ll:\.ngnago employed'in the pOlicy leaves the question in doubt, the construction placed upon it, and acted upon by the assured, is to be upheld. drawn by one party, who makes his own terms and imposes his own conditions, will not be tolerated as a: snare to the un· wary; and irthe words employed"of themselves. or in connection with other· language used in the instrument, or in reference to the subjectmatter to which they relate,;a,re susceptible of the' interpretation given them by the assured, although in.: fact intended otherwise by the insurer, the policy will be construed in favor of the assured. As the insurance company· prepares the contract, and ,embodies in it such conditions as it deems proper, it is in duty bound to use language so plain and clear that the insured cannot mistake or he misled as to the burdMs and duties thereby imposed upon him. Wood, Ins. 140, 141, and cases cited. If it be held that the conditions above quoted are r\lpugnant or inconsistent, the result is the same; fur in that case the provision which is most favorable to-the assured wm'begiven effect. ' Id. 147. The other questions. discussed. by counsel' need not be considered,: for the reason that such of them as are of importaore or in anywise doabUul are disposed of by the special findings of.tJ1e jury in answer to interrogatories submitted by the counsel for defendant. Motion for new trial overruled. LOVE,
J., concurs.
, BUNTIN 'V. CHIOAGO,
R. I. & P. Ry.
Co.
W. D· .J{Ul80'U11'i. Maroh 4, 1890.)
9.
LIMITATION 0lI" ACTIONS-AoORUAL .oF AOTION-OBSTRUOTION OF: STREAM.
Where such. amended petition was1Ued more than llyears after. the first overHow occurred ,and demonstrated the ,negligent construction of the bridge as to plalntUf's land, the cause, of action stated therein was barred by limitation.
At Law. On demurrer to plaintiff's evidence. J, W. Boyd and Greene &- Burnes, for plaintiff. McD01J,gal &: Robinson and E. H. Stiles, for defendant.
BUNTIN ".CHICAGO, R.I. & P. RY. CO.
745
PHILIPS, J., (orally.) I have given this case such consideration as I am able, on the instant{ and will briefly state the pleadings and law applicable to the facts developed, and my conclusions therefrom. The original petition in this case was filed on the 16th day of May, 1883, and there is no better way to ascertain or understand what was the cause of action alleged there than to read the petition itself. After setting out the corporate existence of the defendant and the ownership of the property by plaintiff, it charged that "in the monthoi May, 1873, the Chicago and Southwestern Railway Company, a corporation organized and incorporated unde'r and by virtue of the laws of the state of Missouri, constructed a line of railroad from the town of Winthrop, in said county of Buchanan, in a northwesterly direction through said county, which said line of railroad crossed said stream at a' point at or near the south-west corner of said sectioh .eleven, (11,) and in so constructing said railroad across said stream the said Chicago lind Southwestern Railway Company constructed in: across the channel of said stream at said point an embankment ofeartb, whereby the waters of said stream were turned and twisted from their said course so as to flow upon and over the said lands of plaintiff." Then it sets out the lease of the line of the railway by the Chicago, Rock Island & Pacific Railway Oompany, and states that the parties, (the same as knowledge that said stream' had by said embarik,ment been turned diverted from its course as aforesaid, have at all times kept, maintained, and from time to time repaired said embankment, by reason whereof the said waters were thereby diverted, and turned upon said land ,of plaintiff, as aforesaid, and have continued to overflow said lands,whereby, all said lands have at all times hithert<l beenrendered unfit' for <lultivation, and almost entirely worthless to plaintiff!' The charp;e in the original petition is that the plaintiff claims, resulted from the construction ofthis embankmf(nt,filling up 70 feet of the natural channel, so as to divert the natural course of the stream.' In the original petition there is no word about the bridge. No allegation was made, eveni, that there was any misconduct or any negligent act 011 the part of the defendant in the mattei-of the construction of the bridge. It does not appear there was a bridge built there, in fact. . Now, on the 8th day of April, 1889, in order to comply with what was the ruling of Judge BREWER at that time-, following the 'decision in Offield v. Railroad Co.· 22 Mo. App. 607, (which is in effect that each separate overflow constituted a separate and independent cause of action,) the1>laintiff tookleave to amend for the purpose of putting these different overflows in 'separate counts ot'the petition. Of course, that permission to amend was no limitation upon plaintiff's right to make further and pertinent allegations, or to supplement his cause of action.· This amended petition sets out that the Uhicago & Southwestern Railway Company, in June, 1872,constructed said line of railroad across said stream. "That, in constmcting saidliue of railroad across said stream, the Chicago and Southwestern Railway Company carelessly and unskillfully constructed mand across the' channel of said 'stream, at said point, as ahd for it
vol. 41.,
.:1
ofearthllnd dirt, waters of said strea:m. Were and diverted from their naturN: course, and caused ;to flow ina westerly for the.,distance of>aJbout fifty yards, and at whicl,l point the waters of said stream were cause<kby;the saJ.d OhicagQJtnd:S:olJlth,,'estern Railway Company. to turn a southerly direction,back into ()hannel of said strea-m.That at the said: pointwhflre said stream was turned in a southerly direoHpn, as aforesaid, thesnidChicago and Southwestern Railway andunskillfuUy constructed a bridge and :acrosssll.id about the month of June in. the year 1872, ·W.hi94· said bridgEl" and trestle-work were ical'elessly, negligently, and soconsb:uctedas to be too low, too,riarrow, ,and too short toperm,it, thlil,wa,ters of said railway ,COmPllPY, " negligElntly', .and unskillfully" and at. such time, the;piUng·pf, close together; ,anddn' and I neai' the :ofl said, stre&m, as to obatrnct the flow of the .,Tha.t by the careless"Degligent,and' waters· of 8Ilid..manner in. ,which, said i bridge was .builtand' .constructed, as aforesaid, and by aI)d,inq()Qsequence of the defects and deficiencies, aforesaid, ,Of . $lid .bridgi3:a,l.1dtrestle-iwQrk, said bridge and . tre.aUEt\Vork. at all times QPstmctll<l .the:f\ow: of,aJl.iid Btr,eam, :and was at QJL:tj.:m'es .insufficient·to fperQlit the, ofS$id: ,stream to· flow . i!.·,Theu,it sets out .!low: defendant in this case, by acts totbe [franchise$: /lnd.rights :of .theorigitii:col'poration.,· Then it smtethatJj:lfllndant,;at: aUtimea, :b.ereiomentioned; ;had,full knowleqge .of ",11 the this petition. ."That ftomand,.after'the time, w)lenllaid /l-nd,when'the Chicago, Rock ,Island andifacificRailrQald Company, took pos';session qfsfti<i,raih.'Qad".ahoutJune,,1872, the defendant has at all times negligenUy, .and. <:ontiW,tously caused, ·· driftstones, and iearth to' accumulate rwood, dirt,' deQrri.s;, brusQ', logs, and ,bed and: channel ,under ll:lild against said of6&idstream.,until the time when said: consolidated. from andnfter the time of tp.;wit, defendant herein. has at a11'.timelt'.oorelessly I negligeIlUy" allowed, and'o', p.etmitted drifj;.:wood, logs, earth,illlUd, audstones to ,aocunnlla:te'underand in the ,bedalld oharmeLo£ said ,againat,said .strealn-" until the time ,this i1,:"it was: instituted"whenthe:space.unue!said bridge'Yas by the meaus aforesaid filled up;:soth'at the Qf said from flowing ,under said:'irestleI Wl>rk,. hom their natural channel." ; Then' that,'in coqof, saJ,q j bridge,aJ;ld .obstructions .' in the charinel, to flow over' the: land6f.the ,plainJtiff', tl,udi ithectarpageeusuQd. 80 that it is too. palpable foi' It1ltlt the. caus.e MactioB $etl:up.' in QutofJthe of: the J:>ridg.e"i8;llP, the' ,imJputedrriisconduofofthe defendant I
t
BUN'I;m
v:
CHICAGO, R.I. &: P.RY. CO.
747'
in permitting the debris, mud, etc., to accumulate at the bridge', s6 as to' obstructthe}i'eeflow of the water, causing it to back up and spread out . over plaintiff's l a n d s . . The question is, when did the of limitation cease torun! 8S against this cause of action? The conten.tion of the plaintiff is that the amended petition must have relation back to the time of the institution of the original suit, and the statute of limitations was illtercepted at that time. On the other hand, it is contended that the statute of limitations did not stop running until the filing of the amended' petition. There have been various decisions by the supreme court of this state in respect tb the right of amendment, discussing and defining the difference between amendment and substitution; whether it was a continuationof the same cause of actIon, by merely supplementing and presenting the same cause of action in ,a different form of statement, or whether it wl1s a substitution of another cause of action. Of course,' courts and lawyersnnderstand by the cause of 'action that it is that act 01' gives a parwthe right to sue; the act or wrong of the defendant towards the plaintiff which causes a grievancA for which the law' gives a remedy. The cause of action, in other words., is the act done by a defendant, by which the plaintiff is injured, and for which the law undertakes to:give hitn redress. Attention is called by counsel to the case of Lo4f1ma'11i v,)Jarnett,62 Mod59, which can be better understood; by the subsequent review and application of that case in Lumpkin v.'' Oollier, 69 .Mo·. 170... The defendanUn the first case was sued, in nectionwith otHers, for negligently constructing the scaffolding on which a IflPorer,'Yas work, and from which he was precipitated, claiming WB injury resulted fromitsdmproper construction. The petition was amended by dropping the' co-defendant, and leaving the cnusa, of action against the one defendant; the amended alleged, that .he and in charge .the general erectI()ti rr of the scafi"c,>ldmg, and was responsIble therefor., In Lumpkin 8upra, the·.court commented upon this as lows:
at
Isn() which sanctions snch an amendment as'Waif, mMeiq this. IOLQttrnan v. Barnett, Q2 }10.159. the original petition ",as filed: by plaintiff against pC whom Barnett was one,stati.ng that lier hl,lsbantl .Was a carpenter engHgedin. the construction of a buil<ling, the propl'rty Qf defendants, and while so engaged was killed by tbefalling of the southern pprtl0llof said. building, and t1)at her husband's death was occa. sioned bv of defEndants .and their servant:! in the construction of theb\.lj,lding:Supsequenlly, ahe dismil!sed as to all the defendants eJCcept and, by;leave, fill'd an .am;endl'd petition. containing. the same. allel{ations as tbe 'oi'igi'nal, but alleging that dl'fendant at the time of dent, and for a long time previous,/was thesuperintendingamhitect in charge Of said w.as intl'Usted.as jluch, with the construction and completionof Jhe'same, haVing the Antire 'superintenuence and management of tbe \\rbi-It a;nd materials. aud that the falling of the southern. portion: of the buildinjt'.'wlllJ caused by his carelessness and negligence. N J' f whQ delivered the opinion of the court, observed that, 'both causes of action, of action .asse.rtEjd.either in the: original petitwn or
748
FEDERAl, REPORTER, vol. 41.
the amendment, was based upon the third section of our statute concerning parties originally sued were, in fact, liabl!!, and damages.' 'A.gain: 'AII the case might well have been t1'ied on the o1'iginal petition.' The defendant was liable on the first petitioll,. as he was held to be on the seconrl. The gist of the action was the same in both, to-wit, the death of plaintiff's husband by the negligence of the defendant, either as proprietor or architect and superintendentof the 'building. It would reqUire precisely the same evidence to support the action ,after the amendment as before." The cObrt further observed: "I have italicized those portions of the opinion which clearly indicate the ground upon which that decision was based." That case 'might have been original petition;' this could not have be,en triad all the original tried petition. i , 'In that, the -gist of the action was the same in both;' in this, while some of the facts are common both to the case asserted in the original and thatstated in the amended petiti011, the cause of action in the one is entirely different in its character from that contained in the other. In Lottman v. Bamett-it rl3quired precisely the same evidence t6 support the action after. the amend,ment. as before.' In, t/1is, the case could not have been made out ont1J.e' original petition witljout proof (If the bond, while that stated in the amended petition might have been established if there had never been an Indemnity bond given." , ' ;.,'
Again. in the later case of Sco'Vill.v. GlMner, 79 Mo. 449, written by myself while on the supreme oourt commission, the authorities are reviewed: ''''rhe first lIuestion presented by this recotd is the right of plaintiff to file the amended petition. It. certainly carties the right of amendment to the extremest verge, to 'uphold the amendment in this ease. ' It cannot. as plaintiff's counsel'contends, be maintained as a 'rule that, because the original pE'tition was an actiop (liD, deUcto, any other capse, of action in tort may be substituted by !fit an action for assault and battery might trespass plaintiff's horse; an action for be for,slan\ler JDight be substituted for a'crim. con. action. Nor is it to be nii\lntained that, because two actions might be joIned in separate counts in the same petition, therefore ,the one may'be substituted for the' other by way of amendment. One count might be for trespass to the freehold;' another for assault and battery. The discussion of this question in Lumpkin v.Ool· lief,'69 'Mo. 170. shows that the right of amendment does 110t necessarily obtlliu' because the two cases statetl belong to the same general classifications kuownto the common law anti the Code. ,One of the tests there applied is, that the evidence which wonld support the one would not the ()ther.. 'A defendant sened' with process on ,one cause, of action, suffering a default, might be confronted with a judgmerWun a cause ofaction totally different from that which he was summoned to answer.' The least that could be exacted in the llJ(8rclse of the' right of amendment is :that tIle amended petition should em· bt'dce the original cause ,sued oll, with a like rule in respect of the measure of damages." ' " , :111 Newton v.AU1,s, 378, an action to recover damages for floWing the plaintiff's plaintifi' was. not permitted tpaIU:end so sa to philrge the the statute, 1<;)1' appropriating the land for . his own1,lse. !twas a 8ubstitu tion, and so is this. While the courts, in opser.ving the spirit of the Code, should be liberal in allowirtg amend··
BUNTIN". CHICAGO, R. I. &: P. RY. CO.
749
ments, yet it should be in furtherance of justice, and not beget laxity in pleading, by encouraging attorneys, without a consideration of what they want, and how to sue for it, to state anything as a case, on the reliance that afterwards, when they find out what they want, they may substitute a new cause of action, and call it an amended petition. We do not say that if this action had stood as it was originally instituted in this court, attributing the injuries to the negligent acts of this defendant in filling up and obstructing the original channel of the stream, by reason of which the water was diverted and overran this land, he could support the cause of action by showing that the injury resulted from the negligent construction of the bridge, and the negligent acts of the defendent in permitting the debris to accumulate at the bridge, by reason of which the water had dammed up, and its reflux motion caused it to overflow the banks. I think that would have been a variance. Waiving the question as to whether or not the amended petition be the substitution of a new cause of action, and conceding thatthe plaintiff had the right to file the amended petition, the question remains, is not the new issuerts to the new facts first brought into the to the plea of the statute of limitations? I t is true that courts will allow amendnlents with liberality, in order to prevent the operation of thestatnte of limitations; but this indulgence cannot go to the extent, in order to avoid the statute, of permitting the plaintiff to substItute an entirely new ground of recovery, requiring entirely different evidence, so as to recover thereon, when he could not have done so if this amended petition were an original petition. Unquestionably, had this amended petition been filed, at the time it was, as an original petition, it would have been subject to demurrer, for the reason that the cause of action was barred by the'statute of limitation. In Bud v. Transfer (Jo., 45 Mo. 562, court discusses the effect of an amendment on the running of the statute of limitations.· The court says: .. This· is an action brought under the statute for the recovery of damages. ... I« I« It was originally instituted by the plaintiff, Ruth Buel, as the mother ofa minor child who is alleged to have been fatally injured through the carelessness of oue of the defendant's servants. Subsequtjntly to thl! filing of the petition, and ·eighteen months after the accruing of the cause of action,the peti tiotl was amended so as to. introduce Samuel F. Briel, the father of the deceased child, as a co-plaintiff in the actiun. By the statute, I« I« I« this class of actions is barred in one year from the time they accrue. Unless the amendment, therefore, relation to the commencement of the suit,. and takes effect, as regards the limitation, from that date, then the action is Clearly barred; fol'. it cannot be sllstained as to one of the p'aintifl's, and not as to the other. If either is barred, both are. ... I« I« Whether an amendment, by relation, takes effect from the commencement of the suit, or only from the time of its filing, depends On circumstances. The rule is this: Where the ame.dment sets up no new matter or claim, but is a mere varIation of the allegatIons affecting a demand already in Issue, then the amendment relates to the commencement of the suIt, and the runnIng of the statute Is arrested at that point; but where the amendment introduces a new claim, not before asserted, then it is not treated as relating to the commencement of the sriit, but as equivalent to'a frf'sh suit upon a new cause of action; -the running of the statute cantin Uhlg. down to the time the amendm.elill i. filed."
FEDERALltEPORTER ,vol.
41.
This·c1earlyi shows the distinction. ,:lfthe' party introduces: a new . claim, it!presents 8 new issue; andras-that is the first time the defend· ant has had.an,opportunitytointerp0se the plea of the bar, itmust fol· low that: his right cannot betaken away bythe doctrin.e ohelation, which goesbl:tck to the first filing of. the original petition;, otherwise; the ,party might perpetuate indefinitely a cause of action by suing for onethiing"and,Mter the laplJeof the statutory periodofJimitation, go backto ,he. cause of action already :barred, and revive it under the disguise ofran amepdment. . ,We are now: brought to thequestipnas to when the cause of-aotion before the court,accrued. There is authority of high characterfor the prop-osition ,the railroad bridge; .constructed ,over the creek· in question w8.s\essentiallya permanentsttucture; hot liable to change. As such, the statute of limitation would begintorunagliinst the cailse of action fTomthe time.of the first overflow occasioning anydarmlge to the plainti:ff;:forwhichthe plaintiffhacl Ii causeofatition, ill which he could have recovered,asfora permanent injury to the freehold, because it was then marle' apparent that the property was liable to perpetualinjury.Powefs Iowa, 652;'Stodghill.v. Railroad 66 Iowa, 341, 5 N: W.Rep. 495:; Troyv.Railroad·Oo., 23 N. H. 88; James v. Oityoj, Kan8a8, S3:Mo;.'567; Birdv.iRailroadOo., 30 Mo. App.365. Butwaiving thiS. proposition, and treating tbe,wrong done as not involving the en· tire destrnetion of the estnteor its,·beneficial use, and conceding that it may be. apportioned from· time to,time, so that separate actions may be hrought ,tol'ecoverfor each 'still the right of entry or action for such overflow would be 'barred after the lapse of 10 years {rom the time the plaintiff's cause of action first originated. AuthciritieufLpra. rrhe uncon'tradibtedevidence now befOre ihe jury is that from the time this bridge was constructed, in 1872; there-was periodically silch interference therefrom with the outflow of the water as to cause it to back and overflow. It in 1873 and 1874;8nd several of the witnesses state there was an·accumulation of log$;' ,brush; and other material at this bt,idge, whil:lh!tqntjnually ·obstrt1ctled: the outflow ,of 'the 'water through thaf in.1877 the water,' tr.om overflow and, r,un over hIS land, and tbat annuaI1y ,SI),occulTc d,PP to: 1883, when this suit was originally, instituted; so that,as early all 187r'7:,>1ttleast, the faet,was demonstrated the bridge 'astohimw8S'in'the'ilature ofa nuisance;llud that injury liable tcicotnetOhimtherefrom'a'tanytime.· Even'Ifrio crop was de-' ,he'c9tild. an the overflpw, a,Il<a .More than pyears transpIred afttlrhis petition was filed. claiming any, damage resulting from the col'istrQctionof said bridge. The whole 'Of this"case' that ·tnetllaimof. injury from the im'; Qf the brl'dge,,·:(jt of debris thereat, aImearsfor cqntroand the railroad company o,,:ners has been in prPgress for years. The case of Dick80n v. Ro,ilroad
751 ·11 Mo.' 575, was based ekc1usively upon the wrongful act' the railroad , company in filling up the'01dchanneland,making the' eIXlbankment tbere. Nothing. wbl1Mverwas predicated in' the petition in that case on the fm· properconstl'\lction of the bridge. It therefore,ddea seem to me that there is no escape from-the,conclusion that this isa,new cause of action, first instituted by the filing of the amended petition, in 1889, and that . the' statute of limitation is 'an effectual The,demurrento 1.lw, evidence '\ ;. I
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for the importation of a foreign laborer in..yio;la#oA of the entitled" An act to prohibit the importation and immigration offoreignei's and aliens under contractor agreement to perform labor in the United States, its territories, and the-Histrict of-Columbia," approved February 26, 1885. The declaration averred that "on the first day of April, eighteen hundred and eighty-nine, at Newark, in the district of New Jersey, the defendant, then a citizen of the state of New Jersey, did knowiIlglyassist, encourage, and solicit,tpe importation of and migration' 'iO'fo·JthEl'UnitedStatea or' citHjl Herfuim Passauer, then being an alien and ,'and nO!,a:relatiV'e,personal: friend, ol',member'oHhe·family'of,the said t to said inlppfflttion and migration made by the said Herman Passauer to perform labor and service as an embroiderer and stitcher in the embroidery businll!S1:lA( the said defendant; said business,tbennpt P$I)ga new in!il\,\$try, but having been, the United 8tatM thne",tlA.wit, for more than five years hitherto, to-wit, at Newark, in the district aforeforce ,of the ,pl"OviEliops:,9.t the st8t:liltell;C1fthe and hat}), to demaQd of tW9' dollars, " a gellera!
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